I write this post out of a sense of urgent concern. I recently observed an absolutely dismal bail hearing in a FELONY strangulation case presided over by a clueless judge and an uninformed prosecutor. (I will not mention the name of the county, judge or prosecutor).

After the defense attorney made an impassioned “no bail” argument that was filled with blatant misstatements of medical fact it became quite obvious that the judge and prosecutor were painfully ignorant regarding the insidious nature of strangulation. Bail was set at an outrageously low dollar amount and the victim and her family were visibly and justifiably upset. (The victim looked terrified).

The purpose for re-submitting this training update (originally published in 2014) is to hopefully educate the bench and prosecution of critically important facts that must be considered in every felony strangulation bail hearing. I will go so far as to say that any judge or prosecutor not familiar with the medical/physiological facts outlined in this post has no business presiding over or prosecuting any case involving strangulation. The potential risk to victims are simply too great.

Consider this: A study published in the Journal of Emergency Medicine found that women who survive strangulation by their partner are seven times more likely to be the victim of an attempted homicide and eight times more likely to be the victim of homicide. In other words, strangulation is often one of the last abusive acts committed by a violent domestic partner before murder.

I have been publishing these judicial training updates for more than 10 years all for a simple singular purpose: the hope of keeping our bench and bar as well-educated on relevant issues as possible. When I was still on the bench virtually every judge in the state received these training updates.

To my dismay, I was recently told that judges no longer receive these training updates because someone high up in the judicial branch ordered an email spam filter that blocks the judicial branch from receiving these updates. I was deeply saddened to hear that and sincerely hope it isn’t true. In the meantime, if you know a judge, especially a newer judge, that you believe could benefit from this update (or anyone else for that matter) please feel free to pass it on. Now, on to the really important facts:

QUESTION:When making bail decisions in Felony Strangulation cases, what seven well-established medical-physiological facts should every judge (and attorney) be aware of? (the facts in #5 will amaze you!)

DEFINITION OF STRANGULATION: Strangulation is a form of asphyxia (lack of oxygen) characterized by closure of the blood vessels and/or air passages of the neck as a result of external pressure on the neck.

WIDESPREAD LACK OF UNDERSTANDING:

Many judicial officers and attorneys do not understand the medical and psychological severity of the act of strangulation.

In many cases, the lack of observable physical injuries to the victim cause judges to minimize the seriousness of strangulation.

In order to make sure judges understand the seriousness of strangulation, some prosecutors have asked courts for permission to have an expert in the field of strangulation testify at bail hearings as to the following: see 3-7 below.

STRANGULATION IS ONE OF THE MOST LETHAL FORMS OF VIOLENCE USED BY MEN AGAINST THEIR FEMALE INTIMATE PARTNERS:

The act of strangulation symbolizes an abuser’s power and control over the victim. The sensation of suffocating can be terrifying.

Most victims of strangulation are female.

The victim is completely overwhelmed by the abuser; she vigorously struggles for air, and is at the mercy of the abuser for her life.

The victim will likely go through four stages: denial, realization, primal and resignation.

A single traumatic experience of strangulation or the threat of it may instill such intense fear that the victim can get trapped in a pattern of control by the abuser and made vulnerable to further abuse.

THE “NECK” IS THE MOST VULNERABLE PART OF THE BODY:

Blood and oxygen all flow from the body to your brain through the NECK.

The NECK is the most unprotected and vulnerable part of the body.

More serious injuries occur from NECK trauma than any other part of the body.

MEDICAL FACTS:

Strangulation stops the flow of blood to the brain (carotid artery).

Lack of blood flow to the brain will cause unconsciousness in 10 seconds.

Lack of blood flow to the brain will cause deathin 4 minutes.

It takes very little pressure to stop blood flow to the brain (4 psi):

It takes less pressure than opening a can of soda (20 psi);

It takes less pressure than an average handshake (80-100 psi);

It takes less pressure than pulling the trigger of a handgun (6 psi);

It only takes 33 psi to fracture a victim’s larynx (far less than a handshake).

LACK OF EXTERNAL EVIDENCE ON THE SKIN:

CAUTION: Lack of visible findings (or minimal injuries) does not exclude a potentially life threatening condition. Strangulation often leaves no marks.

A study by the San Diego City Attorney’s Office of 300 domestic violence cases involving strangulation revealed that up to 50% of victims had no visible injuries.

Delayed fatality (e.g. death can occur days or weeks after the attack due to carotid artery dissection and respiratory complications such as pneumonia, respiratory distress syndrome (ARDS) and the risk of blood clots traveling to the brain (embolization).

MINNESOTA HISTORICAL FACTS OF INTEREST

It is estimated that 23% to 68% of women victims of domestic violence have experienced at least one strangulation assault during their lifetimes. Victims of prior attempted strangulation are 8 times more likely of becoming a homicide victim.

In response, the Minnesota Coalition for Battered Women (MCBW) with the assistance of WATCH and its member programs, pushed for the creation of a felony statute for domestic strangulation during the 2005 legislative session.

In 2005, Minnesota became one of just six states with a specific statute making strangulation of a family or household member a felony-level crime. MS 609.2247.

Under Section 609.2247 strangulation means intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.

Prior to the law’s passage, most domestic strangulation cases were charged as misdemeanors even though strangulation is one of the most dangerous forms of domestic violence.

As of 2014, thirty-eight (38) states have passed similar strangulation statutes.

As of 2016, Minnesota was the only state to have conducted an evaluation of the felony strangulation law. Three nationally distributed reports prepared by WATCH in 2007 and 2009, identified the goals, the challenges and the benefits of the law including homicide prevention; interviewed professionals from the criminal justice system, analyzed court files, and made numerous recommendations to enhance the effectiveness of the law. (Watch 2007, 2009).

STRANGULATION IS OFTEN ONE OF THE LAST ABUSIVE ACTS COMMITTED BY A VIOLENT DOMESTIC PARTNER BEFORE MURDER. 2004 Report, Hennepin County Domestic Fatality Review Team.

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Have you ever felt down and out; like life itself was falling from you and it seemed like a major effort just to take care of the everyday mundane things? Of course you have, it’s called being human.

No one person that I have ever encountered has been perfect (except Mike Brandt comes pretty damn close). We all have set-backs, challenges and days where nothing seems to go right; it is a part of life and living. So today, instead of addressing a legal or evidentiary topic, I am going to share a concept with you that can literally change your outlook on life as it illuminates your path to happiness and well-being. That one concept, among many, is gratitude.

Now I know what some of you are thinking. Half of everyone reading this post is probably groaning to themselves, urgggg…. another touchy feely topic. But not so fast, the power of gratitude is much more than just a touchy feely concept. The physical and emotional benefits that flow from expressions of gratitude are well supported by science. So for all of you logic based non-believers let’s talk a little science.

The science of Gratitude

One of the main features of gratitude is that it can help you feel more connected, relaxed and optimistic. When you express gratitude some pretty amazing things happen inside your brain. For example, neurotransmitters and brain chemicals are released like dopamine, beta endorphins and the love drug oxytocin. All of these cause you to experience greater well-being, higher self-esteem and a general sense that everything is going to be OK despite the issues at play in that moment.

When you express genuine gratitude, your system is more resilient and robust. When in the state of being grateful your ventral vegus nerve becomes activated and your ventral vegal tone is made stronger as evidenced by your heart rate variability increasing, which has a direct impact on your cardio vascular health. The vegus nerves are part of your parasympathetic nervous system; which are part of your Autonomic Nervous System that takes care of so many of the involuntary and critical parts of our system like beating your heart and controlling breathing. Heartfelt gratitude can activate the ventral vegus nerve, counteracting stress and anxiety and initiating a calm all over your body which promotes a greater sense of social safety.

Prevalence of Gratitude Across Cultures and Spiritual Traditions

Whether you’re into science or not, at the surface level, gratitude can be viewed as a simple tool for successful living. At its core, though, gratitude is really an approach to life or stated more boldly, it is a way of life. All spiritual traditions include gratitude among their highest virtues. For example, here is a quote attributed to Gautama Buddha:

“Let us rise up and be thankful, for if we didn’t learn a lot today, at least we learned a little, and if we didn’t learn a little, at least we didn’t get sick, and if we got sick, at least we didn’t die; so, let us all be thankful.”

Melody Beattie wrote in her book, Codependence No More, “Gratitude unlocks the fullness of life. It turns what we have into enough, and more. It turns denial into acceptance, chaos to order, confusion to clarity. It can turn a meal into a feast, a house into a home, a stranger into a friend. Gratitude makes sense of our past, brings peace for today, and creates a vision for tomorrow.”

Gratitude and the Practice of Law

As a prior trial attorney and judge, I always tried to champion the primary importance of psychology in trial practice. Being in the proper mental state is a skill central to all successful attorneys. Gratitude opens the heart and mind, putting you in a position of patience and acceptance. Patience, as in methodical step by step trial preparation; and acceptance, as in the ability to accept a trial verdict or judicial decision that you did not want, are both paramount in the life of a legal practitioner. If you approach each trial (or anything else in life) with a grateful attitude, you put yourself in the best possible mental state to effectively present and argue your case.

An Easy Choice

Every day when you wake up you have a fundamentally important choice to make between two possible daily mindsets:

A mindset where you are grateful for the opportunity to excel in a challenging field and happy just to be involved, or

A mindset of struggling and griping about every inch of gained ground, never satisfied with the outcome.

When you read those two choices, no one would consciously pick the second one. Yet when the bell rings and your day begins, many attorneys (and judges) allow themselves to revert to an adversarial mental state (choice #2). Besides the negative affect on the quality of your own life, a non grateful daily attitude also has a profound impact on how you are perceived by others, including your friends and colleagues. Of course, most of you already know which local attorneys and judges fall into that second category. Don’t be one of them.

Final Thoughts

As you return to work following the Christmas holidays, take some time to give thanks for your many blessings, regardless of where you live or practice. And then, make a concerted effort to carry that grateful attitude with you to the courthouse or wherever else you work. You will be pleasantly surprised by how such a small change in approach can make your journey more enjoyable and productive, for both yourself and those around you!

Happy New Year,

Alan F. Pendleton (Former District Court Judge)

763-498-1508; afpendleton@gmail.com

December 25, 2017

References: Dr. M. Woodruff Johnson is the former Executive Director of the Kaiser Permanente, Watts Counseling and Learning Center. He holds certifications in Accelerated Learning, Neurosensory Development and hypnotherapy, and he is a Certified NLP Master Practitioner. Dr. Johnson is also an Associate Professor and teaches graduate psychology courses at Pacific Oaks College and Ryokan College; D.R. Barton, Jr. at vantharp.com.

In 2013 I published a Criminal Jury Trial Manual for Judges and Attorneys that covered every step of a Jury Trial from the pre-trial conference thru the return of verdict. It serves a dual purpose. For judges it serves as a step-by-step script that they can follow throughout the entire trial. For attorneys it serves as a trial reference guide and a reminder of key procedural issues that every trial attorney should know (but so many tend to forget or overlook.) Whether you use the manual as a script or as a reference guide, following the recommended steps greatly reduces the risk of judge or attorney committing a costly mistake resulting in a mistrial or reversal on appeal.

Back in 2013 copies of the manual were distributed to every District Court Judge, all 87 County Attorneys Offices, all 10 Judicial District Public Defender Offices, the Minnesota Supreme Court, the Court of Appeals, and dozens of private law firms and law libraries.

Even though a copy of the manual can be found on this Blog site, over the past year I have received so many requests for additional copies that I’ve decided to redistribute the manual via this post.

COPYRIGHT PERMISSION: Although the manual is copyrighted this post is your permission to download and distribute the manual to anyone you think might find it helpful. Click on link at bottom of this post.

For those unfamiliar with the manual, below is a copy of the Table of Contents.

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Attorneys, judges and jurors all want to see themselves as fair, equitable, and rational, yet studies show that despite our best intentions none of us are free from bias. Implicit bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs.

Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Studies show that implicit bias can affect how judges make decisions, how attorneys decide who to leave on juries and how jurors decide what testimony to believe or disregard.

The impact of implicit bias on decision making has been shown in numerous studies. For example:

Researchers sent identical resumes to employers and found a 50% drop in interview callback rates for the applicants when they changed the names on the resumes from Emily and Greg (signaling European ancestry) to Lakisha and Jamal (signaling African ancestry).

Study participants shown photos of black and white American men with neutral facial expressions perceived the black face to be more hostile than the white face, and the participant’s implicit bias as measured by the IAT correlated to the degree of hostility the participant perceived.

Partners reviewing the identical third-year associate memorandum rated the memorandum higher and found fewer errors when the associate was identified as white than black.

The important takeaway is not that implicit bias is bad or that people who have bias are bad people. We all have bias. Part of our job as trial attorneys and judges is to recognize and address racial justice issues whenever and wherever they arise.

For example, within the context of a jury trial, it is critically important to recognize the role that implicit racial bias may play within the minds of otherwise well intentioned jurors. But how do you uncover from someone a subconscious (implied) bias that the person’s conscious mind does not recognize or even realize exists. As Justice Sotamayor wrote: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race….”

The following are suggestions on how to introduce the issue of implicit racial bias to prospective jurors along with 15 carefully crafted voir dire questions.

IF RACE IS OR MAY BE AN ISSUE IN YOUR TRIAL CONSIDER THE FOLLOWING:

During voir dire you have the right to question jurors concerning their beliefs and attitudes on race and racial bias. Start with introducing the issue of racial bias to the jurors and then try to get them to talk about it. Make sure to link questions about race to your case. The following statement to the jury panel and sample voir dire questions are a good starting point.

NOTE: Some attorneys may prefer to have the judge address the issue of racial bias with the jury panel by asking all or some of the following race related questions. All voir dire issues (including the racial bias statement below) should be discussed with the judge during your pretrial conference prior to commencement of trial.

INTRODUCING THE ISSUE OF RACIAL BIAS TO THE JURY PANEL: Ladies and gentlemen, despite the many differences in our lives and backgrounds, we all want to see ourselves as fair, equitable, and rational human beings, yet studies show that despite our best intentions none of us are free from bias. Implicit racial bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs. Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Implicit bias is developed over the course of a lifetime through exposure to direct and indirect messages. Studies show that implicit bias can affect how we all make important decisions in our lives. Please keep that in mind as you answer the following questions

IMPLICIT BIAS TEST: The most widely recognized test of implicit bias is the Implicit Association Test (IAT) conducted by Project Implicit a research website operated by Harvard University, Washington University, and the University of Virginia.

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PERSONAL UPDATE: I woke up this morning realizing that it had been 6 months since my last post. One of the drawbacks to the aging process is that time seems to pass so much faster than when we were younger. I am now a legal resident of North Scottsdale, Arizona but we will continue to spend summers and fall in Minnesota. We just completed construction on a new home way out in Minnestrista (for those of you geographically challenged) Minnestrista is a picturesque small town located on the western edge of lake Minnetonka. Now that the dust has started to settle I will hopefully get back to posting on a more regular basis. If you need to reach me I have a new email: afpendleton@gmail.com. As for this week’s post:

Whether you work in a private law firm, city or county Attorneys office, public defenders office, or as a judicial law clerk, someone at your place of employment has responsibility for hiring and firing new attorneys.

Over my 36 year legal career I have worked in all of the above settings (except not as a public defender). I can tell you from personal experience that when management attorneys meet to discuss business, the subject often turns to common mistakes made by new attorneys. This is a topic I wish law schools would spend more time covering with their recent graduates.

The following is a list of ten typical mistakes to avoid when you’re trying to get your legal career off to a great start.

MENTORING SUGGESTION: If you are an older more experienced attorney I encourage you to share this post with any new attorneys in your firm or office.

Know your place. If you’re the newest lawyer in your firm/office, others with more seniority and experience expect a certain level of respect. Being arrogant, self-righteous, or correcting senior counsel publicly will make your opinions less favored than using a respectful and thoughtful approach. You’re expected, at least initially, to prove that you can work harder and longer hours to prove yourself. Complaining about the work load, taking long lunches, and expecting to have a hand in deciding what cases you’ll work on will appear overreaching and unappreciative. Perks will come with time and experience.

Don’t be afraid to ask for input. Few new attorneys ever ask for input or ask how their work can be improved. This is probably because they don’t really want to receive feedback on these issues for fear of being criticized. However, it shows initiative and maturity to ask how you can improve. Also, if you want advice on how to approach a legal task, it’s often helpful to approach your supervisor early with a plan as to how you will attack the legal problem. It’s better to find out if you’re on the right or wrong track early than to waste time doing something the wrong way. The fact that you’re trying to improve is impressive in itself.

Write a handwritten note. Hardly anyone thinks to write a thoughtful, handwritten note to show appreciation for a kind gesture. Before texts and emails, we actually owned pens and stationery! A nicely written note will earn you major points with both supervisors and clients. Electronic communications can seem impersonal and may get buried in the email morass of the recipient’s inbox. (this is my personal favorite!)

Listen more than you talk. When you’re a new lawyer, there’s a tendency to talk too much and listen too little because you’re trying to impress clients and/or colleagues. However, a good lawyer listens to the client and their issues, concerns, and problems and then asks appropriate follow-up questions before offering legal advice. Learn to be a good listener early on in your career and your clients will appreciate you for it. When dealing with more experienced attorneys in your firm/office your rule of thumb should be “ask them questions, listen, learn from them and then thank them.” Developing your active listening skills will also help you with negotiations (civil or criminal).

Have empathy. Clients (and victims for prosecutors) are often frightened by being involved in the legal process and may feel very violated. They’re coming to you for legal advice, but showing compassion, being a good listener, and treating them with respect can earn you a client for life . Many people don’t think that lawyers care about the outcome of the legal issue—do what you can to change this perception of lawyers and you’ll help the profession, and yourself, in the process.

Learn to proofread. Read and reread everything you draft. And always even though you draft it electronically, print your legal work and review it thoroughly before signing it. Doing this helps you catch formatting errors, written mistakes, and less than stellar analysis. Keep it formal; too many young lawyers inappropriately use a casual, unprofessional tone (i.e., “the defendant acted like a Mafia Don”) and colloquialisms or slang. By submitting a technically perfect document, you can set yourself apart from others and enhance the possibilities for future successes. Judges can be especially critical of attorneys that submit sub-par filings.

Get all agreements in writing. Handshake deals aren’t the way we practice law. No matter how friendly your relationship is with opposing counsel, all agreements should be confirmed in writing. For example, if opposing counsel tells you on the phone that he or she will drop a cause of action from the complaint, get it in writing so you aren’t left without recourse if he or she reneges. And if much of your confirmation writings are in email, make sure to have a system for storing these agreements or print them out for future use. This is expecially important when reaching plea deals in criminal cases.

Don’t expect law clerks and Google to tell you how to practice law. Law clerks hate calls from lawyers who try to use them as a reference instead of doing their own independent research. And you don’t want to irritate the clerk. Also, be aware that a search on Google or another online search engine doesn’t replace actual legal research, and any samples you obtain through such a search should be thoroughly researched to make sure the law cited is correct, recent, and relevant. Also, when researching, always read the entire case. Don’t depend on a summary and canned holding that may not be on point with your own case. Remember, if you annoy or agitate a law clerk the judge is sure to hear about it.

For private attorneys, understand what it means to provide client value. Your work, every minute of it, is ultimately billed to a client, and you should think about how the bill will look from the client’s perspective. Keep up with your timesheets on client matters on a daily basis. Your firm and the clients will benefit from your accuracy and value your efficiency. Provide detailed billing so that you can always justify your time and don’t do secretarial work that can be billed by someone else at a lower rate.

Use your tech skills. Younger attorneys are usually proficient at using computer programs, social media, and other technologies. Offer to assist your firm/office with existing skills to add value to the organization while demonstrating your own value. It will take a while to develop legal skills, so why not capitalize on skills you already have in the meantime?

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Message From Site Manager Former Judge Alan F. Pendleton

This training site contains the complete repository of the "Pendleton Judicial Training Updates". Training Updates are designed to be short, concise, easy to read judicial tips that every judge and attorney should know. Many of the updates are designed for use "in court" by judges and attorneys as resource guides to ensure the making of a full and complete record.

Past Training Updates are listed under "TABLE OF CONTENTS" and "SUBJECT MATTER INDEX" above and "CATEGORIES" below. The five most recent Updates are posted to the left.

This Blog also serves as a judicial resource library with hyperlinks to numerous research and reference sites.

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